Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement

Intellectual Property, Copyright and Trademark and Patents

Article Snapshot


Pamela Samuelson


Berkeley Technology Law Journal, Vol. 31, No. 3, pp. 1215-1300, 2017


Copyright law protects the expressive elements of created works, but not the work’s function. But expressive elements of software programs are hard to distinguish from functional elements. Elements needed to interoperate with other programs should not be protected by copyright.

Policy Relevance

Copyright law should not protect elements of a software program such as abstract ideas, processes, or methods.

Main Points

  • Copyright is intended to protect the way in which a created work is expressed, but not its underlying functionality; copyright protection for software is problematic, because functionality (for example, the program’s ability to interoperate with others) is important.
  • In Computer Associates Int’l, Inc. v. Altai, (Altai), the Second Circuit ruled that courts should “filter out” elements of software that copyright law does not protect, such as elements the program needs to interoperate with other programs.
    • Many other cases have followed this decision.
    • Altai fails to mention that some elements of a program (including abstract ideas, processes and methods) are unprotectable under § 102(b) of the Copyright Act.
  • In Lotus v. Borland, the Supreme Court correctly ruled that copyright does not protect the command structure of a computer program user interface under § 102(b), but failed to explain its decision clearly; the command structure was essential to making a compatible program, and allowing imitation of the structure supported competition.
  • In Oracle v. Google, the Federal Circuit Court of Appeals wrongly rejected the argument that the software elements at issue should not be protected by copyright.
  • When the functional and expressive elements of software merge, especially in command structures and interface elements, courts should narrow the scope of copyright protection.
  • The plaintiff in a software copyright infringement case should specify exactly which elements of her program have been infringed; the court should then identify elements of the program that fall outside the scope of copyright protection, either under § 102(b), because they are necessary for interoperability, are unoriginal, or for other reasons.
  • Some support additional copyright protection for the industrial design elements of software, but such protection should come from the Congress, not from the courts; however, the software industry is competitive and innovative, and there is no evidence that additional copyright protection for software copyrights is necessary.


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